When a community association takes legal action to force an owner to comply with deed restrictions, the owner’s first defense is almost always “selective enforcement”. This defense essentially alleges that the association is not treating its members fairly and equally. “Why can I have only one dog” the owner may ask “when the president of the association has two?” If the association has chosen not to enforce a particular restriction against some owners, it may be estopped from enforcing the same provision against other owners who have made similar alterations or violated the deed restrictions in similar ways.
Although selective enforcement can be a valid defense, owners are rarely successful in prevailing against a community association on grounds of selective enforcement. The defense often fails because owners can rarely prove that the Association knew of or permitted similar violations by other owners. Inadequate or disorganized record keeping may make it hard for an owner to determine whether the Association has made similar enforcement efforts against other owners. Moreover, owners often overlook the most important requirement in asserting the defense of selective enforcing: the violations MUST be similar.
In order to demonstrate selective enforcement, the owner must show that the other violations permitted by the Association are comparable to the type of violation involved in the owner’s individual situation. Scarfone v. Culver House, 443 So. 2d 122 (Fla. 2d DCA 1983). For example, in Schmidt v. Sherrill, 442 So. 2d 963, 964 (Fla. 4th DCA 1983), an association’s governing documents prohibited alterations to the exterior walls of the building without first obtaining the unanimous consent of other unit owners. Id. The owners in question failed to obtain the necessary consent before constructing glass enclosed balconies. Id. When sued by the association, the owners alleged that the Association had selectively enforced its governing documents because it had allowed hurricane shutters and detachable cloth sunscreens even though such modifications altered the exterior walls of the building. Id. The court held that the owners’ defense of selective enforcement did not exist because glass enclosures were simply not comparable to the examples of selective enforcement being advanced. Id. Similarly, in Lester v. Pine Ridge at Delray Beach Condominium Association, Inc., Arbitration Case No. 94-0112 (Summary Final Order / October 28, 1994), it was determined that selective enforcement did not exist where the association enforced its anti-truck parking rule against pickup trucks, but not against Jeeps and Rangers. In Board of Trustees of Bel Fontaine v. Caruso, Arbitration Case No. 94-0116 (Final Order / September 14, 1994), selective enforcement was not shown to exist where the association, in seeking to enforce a no-pet restriction against a dog, had failed in the past to enforce the no-pet restriction against a unit owner with a parakeet, which the arbitrator found is not similar to a dog, but is quiet and kept in an indoor cage.
Even if an association has not enforced a strict uniformity of appearance requirement with respect to alterations, an owner will not prevail on a defense of selective enforcement where they have made an alteration or modification which is more extensive than the alterations of other unit owners. See Quail Run of Sunrise Unit Three Condominium Ass’n., Inc., v. Castellanos, 2009 WL 6383767, Case No. 08-04-6480 (Fla. DBPR Arb., Final Order March 23, 2009) (finding that unit owner could not prevail on defense of selective enforcement where his enclosed patio was more extensive than the alterations of other unit owners). See also Miami Lakes Civic Ass’n. v. Encinosa, 699 So.2d 271, 272-273 (Fla. 5th DCA 1997) (finding that Association did not arbitrarily enforce restrictions where it disapproved a deck which was larger than other structures on the lakefront).
Even though it may be difficult to prevail on a claim of selective enforcement, associations should beware: claims of selective enforcement may lead to expensive document inspection requests and even more expensive litigation. Associations should, to the best of their ability, seek to enforce deed restrictions and architectural guidelines uniformly and fairly. If an association chooses to enforce a provision which they have not previously enforced or have not enforced uniformly, they should consider documenting the decision in writing, or if their documents allow, enacting rules and regulations that explain how the provision will be enforced going forward.
For more information on this topic, contact attorney Kathleen Reres at kreres@slk-law.com.